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03.31.14Professors Miriam Baer and Bennett Capers Featured in Yale Law Journal Symposium on Justice Sotomayor

Professors Miriam Baer and Bennett Capers are among the select scholars featured in “The Early Jurisprudence of Justice Sotomayor,” a Yale Law Journal Forum symposium published last week.

Professor Baer’s essay focuses on Justice Sotomayor’s concurrence in United States v. Jones, in which she suggested that the Court reconsider its reasonable expectation of privacy test and the related third-party doctrine. Justice Sotomayor’s opinion exemplifies an attempt to stake out a “middle ground” approach to Fourth Amendment debates over surveillance and technology, Professor Baer argues, one which foregrounds intimacy and common-sense rules as guiding principles.

“Drawing on the common-sense outlook that resonates with both legal and lay audiences, she has laid a foundation upon which later courts may develop a more fulsome conception of privacy and a workable framework for protecting it,” Professor Baer writes.

Professor Capers’s essay, titled “Reading Michigan v. Bryant, ‘Reading’ Justice Sotomayor,” addresses a central question: What are we to make of Justice Sotomayor’s criminal procedure jurisprudence? He offers three readings of her Confrontation Clause decision in Michigan v. Bryant, along with details from her memoir, as the basis for a “reading” of Justice Sotomayor.

“The argument I want to make is straightforward: That Justice Sotomayor is precedent-bound, except when she’s not,” he writes. “That she’s progressive, but not above using conservative methodologies to get her way. And while there’s much to applaud in her jurisprudence, there are dangers too. And hope.”